[Federal Register: December 7, 2000 (Volume 65, Number 236)]
[Rules and Regulations]
[Page 76885-76888]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de00-13]
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Part VII
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 20
Migratory Bird Hunting; Temporary Approval of Tin Shot as Nontoxic for
Hunting Waterfowl and Coots During the 2000-2001 Season; Final Rule
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DEPARTMENT OF INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN: 1018-AH67
Migratory Bird Hunting; Temporary Approval of Tin Shot as
Nontoxic for Hunting Waterfowl and Coots During the 2000-2001 Season
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) amends 50
CFR 20.21(j) to grant temporary approval of tin shot as nontoxic for
hunting waterfowl and coots during the 2000-2001 season only. Acute
toxicity studies revealed no adverse effects over a 30-day period on
mallards (Anas platyrhynchos) dosed with tin shot. Reproductive/chronic
toxicity testing over a 150-day period indicated that tin administered
to adult mallards did not adversely affect them or the offspring they
produced. The tin shot application was submitted by the International
Tin Research Institute, Ltd. (ITRI) of Uxbridge, Middlesex, England.
DATES: This rule takes effect on December 7, 2000.
ADDRESSES: Copies of the Environmental Assessment are available by
writing to the Chief, Division of Migratory Bird Management, U.S. Fish
and Wildlife Service, 4401 N. Fairfax Dr., Suite 634, Arlington, VA
22203.
FOR FURTHER INFORMATION CONTACT: Jon Andrew, Chief, Division of
Migratory Bird Management, (703) 358-1714.
SUPPLEMENTARY INFORMATION: The Migratory Bird Treaty Act of 1918
(Act)(16 U.S.C. 703-712 and 16 U.S.C. 742 a-j) implements migratory
bird treaties between the United States and Great Britain for Canada
(1916 and 1996 as amended), Mexico (1936 and 1972 as amended), Japan
(1972 and 1974 as amended), and Russia (then Soviet Union, 1978). These
treaties protect certain migratory birds from take, except as permitted
under the Act. The Act authorizes the Secretary of the Interior to
regulate take of migratory birds in the United States. Under this
authority, the Fish and Wildlife Service controls the hunting of
migratory game birds through regulations in 50 CFR part 20.
The purpose of this rule is to allow the hunting public to
temporarily use tin shot for hunting waterfowl and coots during the
2000-2001 hunting season only. Accordingly, we amend 50 CFR 20.21,
which describes illegal hunting methods for migratory birds. Paragraph
(j) of Sec. 20.21 pertains to prohibited types of shot. We amend
Sec. 20.21(j) to allow temporary use of tin shot (99.9 percent tin,
with 1 percent residual lead) as nontoxic shot for waterfowl and coot
hunting during the 2000-2001 hunting season only.
Since the mid-1970s, we have sought to identify shot that does not
pose a significant toxic hazard to migratory birds or other wildlife.
Currently, only steel, bismuth-tin, tungsten-iron, tungsten-polymer,
and tungsten-matrix shot are approved as nontoxic. We previously
granted temporary approval for tin shot during the 1999-2000 hunting
season (August 19, 1999; 64 FR 45400). Compliance with the use of
nontoxic shot has increased over the last few years (Anderson et al.
2000). We believe that compliance will continue to increase with the
approval and availability of other nontoxic shot types.
ITRI's candidate shot is made from commercially pure tin; no
alloying or other alterations are intentionally made to the chemical
composition of the shot. This shot material has a density of
approximately 7.3 g/cm\3\, and is 99.9 percent tin, with a low level of
iron pickup due to the steel production equipment. The tin shot
application from ITRI contains a description of the shot, a
toxicological report (Thomas 1997), results of a 30-day toxicity study
(Wildlife International, Ltd. 1998), and results of a 150-day
reproductive/chronic toxicity study (Gallagher et al. 2000). On August
19, 1999 (64 FR 45400) we published a detailed literature review on
toxicity, environmental fate, and known effect of tin on birds, as well
as results from ITRI's 30-day toxicity testing of tin shot. On
September 25, 2000 (65 FR 57586) we published results from ITRI's
reproductive/chronic toxicity study which revealed no adverse effects
of tin shot on adult mallards, or the offspring they produced.
Nontoxic Shot Approval
The nontoxic shot approval process contains a tiered review system
and outlines three conditions for approval of shot types. The first
condition for nontoxic shot approval is toxicity testing. Based on the
results of the toxicological report and the toxicity tests discussed
above, we conclude that tin shot does not pose a significant danger to
migratory birds or other wildlife.
The second condition for approval is testing for residual lead
levels. Any shot with lead levels equal to or exceeding 1 percent will
be considered toxic and, therefore, illegal. We have determined that
the maximum environmentally acceptable level of lead in any nontoxic
shot is trace amounts of 1 percent, and incorporated this requirement
in the new approval process. ITRI has documented that tin shot meets
this requirement.
The third condition for approval involves law enforcement. In the
August 18, 1995, Federal Register (60 FR 43314), we indicated our
position that a noninvasive field detection device to distinguish lead
from other shot types was an important component of the nontoxic shot
approval process. At that time, we stated that final approval of
bismuth-tin shot would be contingent upon the development and
availability of a noninvasive field detection device (60 FR 43315). We
incorporated a requirement for a noninvasive field detection device in
the revised nontoxic shot approval process published on December 1,
1997 (62 FR 63608); 50 CFR 20.134(b)(6). A field detection method to
distinguish tin shot from lead currently is being developed by ITRI.
Granting temporary approval for tin shot during the 2000-2001 hunting
season will facilitate completion of development of such a device.
However, we will not consider either additional temporary approvals, or
final approval, of tin shot beyond the 2000-2001 season until a
reliable and acceptable field detection method is developed and is
readily available to law enforcement personnel.
As stated previously, this rule amends 50 CFR 20.21(j) by
temporarily approving tin shot as nontoxic for hunting waterfowl and
coots during the 2000-2001 hunting season only. It is based on the
toxicological report, acute toxicity study, and the reproductive/
chronic toxicity study submitted by ITRI. Results of these studies
indicate the absence of any deleterious effects of tin shot when
ingested by captive-reared mallards.
In the amendatory language of the proposed rule published on
September 25, 2000 (65 FR 57588), we incorrectly stated the chemical
composition of tungsten-iron shot as 55 parts tungsten and 45 parts
iron. The correct composition is 40 parts tungsten and 60 parts iron.
Public Comments and Responses
The September 25, 2000, proposed rule published in the Federal
Register (65 FR 57586) invited public comments from interested parties.
We indicated that the public comment period had been shortened to 30
days to expedite the availability of tin shot to hunters during the
current hunting season (65 FR 57587). The DATES section of the
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proposed rule incorrectly stated that public comments should be
submitted no later than November 24, 2000, instead of October 24, 2000.
On October 23, 2000, we published a notice in the Federal Register to
correct the closing date for comments (65 FR 63225). We received three
comments during the comment period.
ITRI expressed their appreciation for extension of temporary
approval of tin shot, which will facilitate development of a field
detection device. The Wisconsin Department of Natural Resources did not
support granting temporary approval of tin shot at this time, due to
the lack of a noninvasive field detection device to distinguish tin
from lead shot. A private individual inquired whether or not ITRI
manufactures tin shot, and whether the Service possessed any specific
tin shot which it proposes to approve as nontoxic. The individual also
opposed the approval of tin shot due to the low density of tin; which
the individual believes will increase the incidence of crippling of
waterfowl. Finally, the individual recommended that Service revise its
nontoxic shot approval process to incorporate a lethality component.
Service Response: We understand the concern of wildlife agencies
regarding the lack of a noninvasive field detection device. ITRI is
currently developing such a device, and granting temporary approval of
tin shot for an additional year will facilitate completion of such
development. However, tin shot shells currently on the market clearly
are labeled as such, which will aid in field detection. We reiterate
that we will not consider either additional temporary approvals, or
final approval, of tin shot beyond the 2000-2001 season until a
reliable and acceptable field detection method is developed and is
readily available to law enforcement personnel.
With regard to whether or not ITRI manufactures tin shot, there is
no requirement for an applicant for nontoxic shot approval to
physically manufacture the shot themselves. ITRI submitted a five pound
sample of the candidate shot with its original application. Because tin
shot is 99.9 percent tin, it is essentially a generic tin shot and its
nontoxic characteristic is not dependent on the manufacturer. With
regard to the ballistic performance of tin shot, the density of tin
shot (approximately 7.3 g/cm\3\) is only slightly less than that of
approved steel shot (7.9 g/cm\3\). Previously, we reviewed the
ballistic performance of steel shot versus lead shot, and concluded
that steel shot was suitable for hunting waterfowl (U.S. Fish and
Wildlife Service 1976, 1986). As with any shot type, we recommend that
hunters restrict shooting to shorter distances to reduce crippling and
maximize the number of waterfowl that are retrieved. We solicited
public input on our proposed revision to the nontoxic shot approval
process on January 26, 1996 (61 FR 2470). We received no public
comments requesting that a lethality component be incorporated in the
revised approval process. Finally, we note that tin shot has already
been approved as nontoxic for hunting waterfowl in Canada.
References
Anderson, W.L., S.P. Havera, and B.W. Zercher. 2000. Ingestion of
lead and nontoxic shotgun pellets by ducks in the Mississippi
Flyway. J. Wildl. Manage. 64:848-857.
Gallagher, S.P., J.B. Beavers, R. Van Hoven, M. Jaber. 2000. Pure
tin shot: A chronic exposure study with the mallard including
reproductive parameters. Wildlife International, Ltd. Project No.
476-102. Easton, Maryland. 322pp.
Thomas, V.G. 1997. Application for approval of tin shot as non-toxic
for the hunting of migratory birds. 26 pp.
U.S. Fish and Wildlife Service. 1976. Final Environmental Impact
Statement: Proposed use of steel shot for hunting waterfowl in the
United States. Department of the Interior. Washington, DC. 276pp.
U.S. Fish and Wildlife Service. 1986. Final Supplemental
Environmental Impact Statement: Use of lead shot for hunting
migratory birds in the United States. Department of the Interior.
Washington, DC. 549pp.
Wildlife International, Ltd. 1998. Tin shot: An oral toxicity study
with the mallard. Project No. 476-101. 158 pp.
NEPA Consideration
In compliance with the requirements of section 102(2)(C) of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the
Council on Environmental Quality's regulation for implementing NEPA (40
CFR 1500-1508), we prepared an Environmental Assessment (EA) for
temporary approval of tin shot in October, 2000. Based on review and
evaluation of the information contained in the EA, we have determined
that amending 50 CFR 20.21(j) to provide temporary approval of tin shot
as nontoxic for waterfowl and coot hunting during the 2000-01 season
would not be a major Federal action that would significantly affect the
quality of the human environment within the meaning of section
102(2)(c) of the National Environmental Policy Act of 1969.
Accordingly, the preparation of an Environmental Impact Statement on
this action is not required. The EA is available to the public at the
location indicated under the ADDRESSES caption.
Endangered Species Act Considerations
Section 7 of the Endangered Species Act (ESA) of 1972, as amended
(16 U.S.C. 1531 et seq.), provides that Federal agencies shall ``insure
that any action authorized, funded or carried out * * * is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of (critical) habitat * * *'' We have completed a Section 7
consultation under the ESA for this rule. The result of our
consultation under Section 7 of the ESA is available to the public at
the location indicated under the ADDRESSES caption.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires the preparation of flexibility analyses for rules that will
have a significant effect on a substantial number of small entities,
which includes small businesses, organizations or governmental
jurisdictions. This rule approves an additional type of nontoxic shot
that may be sold and used to hunt migratory birds; this rule would
provide one shot type in addition to the existing five that are
approved. We have determined, however, that this rule will have no
effect on small entities since the approved shot merely will supplement
nontoxic shot already in commerce and available throughout the retail
and wholesale distribution systems. We anticipate no dislocation or
other local effects, with regard to hunters and others. This rule has
not been reviewed by the Office of Management and Budget (OMB) review
under Executive Order 12866.
Executive Order 12866
This rule is not a significant regulatory action subject to Office
of Management and Budget (OMB) review under Executive Order 12866. OMB
makes the final determination under E.O. 12866. We invite comments on
how to make this rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the rule
clearly stated? (2) Does the rule contain technical language or jargon
that interferes with its clarity? (3) Does the format of the rule
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Would the rule be easier to understand
if it were divided into more (but shorter) sections? (5) Is the
description of the rule in the
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SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the rule? What else could we do to make the rule easier
to understand?
Paperwork Reduction Act
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. We have examined this regulation
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501) and found it
to contain no information collection requirements. However, we do have
OMB approval (1018-0067; expires 10/31/2003) for information collection
relating to what manufacturers of shot are required to provide to us
for the nontoxic shot approval process. For further information see 50
CFR 20.134.
Unfunded Mandates Reform Act
We have determined and certify pursuant to the Unfunded Mandates
Reform Act, 2 U.S.C. 1502, et seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State government or private entities.
Civil Justice Reform--Executive Order 12988
We, in promulgating this rule, have determined that these
regulations meet the applicable standards provided in Sections 3(a) and
3(b)(2) of Executive Order 12988.
Takings Implication Assessment
In accordance with Executive Order 12630, this rule, authorized by
the Migratory Bird Treaty Act, does not have significant takings
implications and does not affect any constitutionally protected
property rights. This rule will not result in the physical occupancy of
property, the physical invasion of property, or the regulatory taking
of any property. In fact, this rule will allow hunters to exercise
privileges that would be otherwise unavailable; and, therefore, reduces
restrictions on the use of private and public property.
Federalism Effects
Due to the migratory nature of certain species of birds, the
Federal government has been given responsibility over these species by
the Migratory Bird Treaty Act. This rule does not have a substantial
direct effect on fiscal capacity, change the roles or responsibilities
of Federal or State governments, or intrude on State policy or
administration. Therefore, in accordance with Executive Order 13132,
this regulation does not have significant federalism effects and does
not have sufficient federalism implications to warrant the preparation
of a Federalism Assessment.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible
effects on Federally recognized Indian tribes and have determined that
there are no effects.
Effective Date
Under the APA (5 U.S.C. 551-553) our normal practice is to publish
policies with a 30-day delay in effective date. But in this case, we
are using the ``good cause'' exemption under 5 U.S.C. 553(d)(3) to make
this policy effective upon publication for the following reasons: This
rule relieves a restriction and, in addition, it is not in the public
interest to delay the effective date of this rule. It is in the best
interest of small retailers who have stocked tin shot for the current
season. The Services believes another nontoxic shot option likely will
improve hunter compliance, thereby reducing the amount of lead shot in
the environment.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Accordingly, we amend part 20, subchapter B, chapter 1 of Title 50
of the Code of Federal Regulations as follows:
PART 20--[AMENDED]
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.
2. Section 20.21 is amended by revising paragraph (j) introductory
text and adding paragraph (j)(1) to read as follows:
Sec. 20.21 What hunting methods are illegal?
* * * * *
(j) While possessing shot (either in shotshells or as loose shot
for muzzleloading) other than steel shot, or bismuth-tin (97 parts
bismuth: 3 parts tin with 1 percent residual lead) shot, or tungsten-
iron (40 parts tungsten: 60 parts iron with 1 percent residual lead)
shot, or tungsten-polymer (95.5 parts tungsten: 4.5 parts Nylon 6 or 11
with 1 percent residual lead) shot, or tungsten-matrix (95.9 parts
tungsten: 4.1 parts polymer with 1 percent residual lead) shot, or tin
(99.9 percent tin with 1 percent residual lead) shot, or such shot
approved as nontoxic by the Director pursuant to procedures set forth
in Sec. 20.134, provided that this restriction applies only to the
taking of Anatidae (ducks, geese, (including brant) and swans), coots
(Fulica americana) and any species that make up aggregate bag limits
during concurrent seasons with the former in areas described in
Sec. 20.108 as nontoxic shot zones, and further provided that:
(1) Tin shot (99.9 percent tin with 1 percent residual lead) is
legal as nontoxic shot for waterfowl and coot hunting for the 2000-2001
hunting season only.
(2) [Reserved]
Dated: November 24, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-30957Filed 12-06-00; 8:45 am]
BILLING CODE 4310-55-P